In Condit Dam Case

FERC rejects legal claim by counties

The Federal Energy Regulatory Commission (FERC) has rejected an administrative motion by Klickitat and Skamania counties that alleged unfair ex parte contact by a FERC commissioner.

In a May 28 decision, the FERC Board of Commissioners unanimously denied the motion. The board pointed out that the commissioner involved followed the appropriate rules.

The counties' legal filing came on May 7, in the wake of an April visit to the Condit Dam site by FERC Commissioner Nora Mead Brownell. The motion called for FERC to enforce its rule on prohibited off-the-record communications made to Commissioner Brownell by representatives of the Department of the Interior, the Columbia River Inter-Tribal Fish Commission, and CRITFC's member tribes.

However, in its formal response to the counties, the FERC Board of Commissioners cited the following:

"Apparently, the counties are unaware that Commissioner Brownell and her staff placed a memorandum into the non-decisional record of this proceeding on April 30," read the FERC decision. "In compliance with Rule 2201, that memorandum summarized the meetings in which they participated during the course of a tour arranged by the Department of the Interior to meet with various Indian tribes in the Pacific Northwest who deal with hydro-power issues. As relevant here, the memorandum pointed out any discussions that may have constituted prohibited off-the-record communications ... Accordingly, as Rule 2201 was followed on a timely basis, the counties' motion to direct the compliance with Rule 2201 is denied as moot. For like reasons, there is no basis to grant the counties' second request [sanctions against DOI, CRITFC, and member tribes], which is also denied."

Klickitat County Prosecuting Attorney Tim O'Neill said he continued to believe the commissioner's visit was inappropriate.

"It seemed a little interesting to me that a commissioner who is going to decide the merits of this case was going to the site and meeting with interested parties," O'Neill said. "That presents a situation you'd want to avoid. We need to make sure we're all on the same playing field. Not having other parties being part of the conversation is very unfair."

O'Neill said the visit itself was not controversial, but the fact that she met only with those who favor removal of Condit Dam wasn't right.

"As a lawyer, we try to not only avoid impropriety, but also the appearance of impropriety. Washington has stringent standards," O'Neill explained. "Even if it's not totally improper, what happened here doesn't look right and it doesn't smell right. What were they thinking?"

O'Neill added that had the roles been reversed, dam removal proponents would not have been happy.

"If we initiated FERC to show up so we could talk to them privately, those who support removing the dam would raise a furor, and they'd be entitled to. They would have been rightfully outraged by that," O'Neill said.

Tim Weaver, a Yakima attorney who serves as the Yakama Tribe's legal representative on the Condit Dam issue, said the legal motion from the two counties was unnecessary.

"My only comment would be, FERC followed the procedures set out in its rules for this type of process," Weaver said. "The county got all upset because they read something in the newspaper, but apparently did not check with FERC before they went forward with their filing."

Weaver added that the tribes had been unjustly disparaged by the motion.

"It's upsetting to have the counties file that motion and imply that the tribes were trying to take unfair advantage. That was not the case at all," Weaver said.

O'Neill said he did not anticipate any further action on the matter of Brownell's visit.

"I have no further comment," he said. "They (FERC) have made this ruling on this particular issue, and it appears to be the end of it."